Madras High Court
Murugan vs Kasturi
Author: R.Hemalatha
Bench: R.Hemalatha
S.A.No.685 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.01.2025
DELIVERED ON : 30.01.2025
CORAM :
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No. 685 of 2022 &
C.M.P. No.29661 of 2024
Murugan .....Appellant
vs
1. Kasturi
2. Arivalagan
3. Karunamoorthy
4. Lalitha
5. Usha
6. Krishnamoorthy
7. Guna @ Gunasekaran .... Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 28.10.2021 passed in A.S. No.27 of 2019,
on the file of the Subordinate Court, Panruti, upholding the decree and
judgment dated 20.03.2019 passed in O.S.No.294 of 2012, on the file of
the District Munsif Court, Panruti.
Page 1 of 16
https://www.mhc.tn.gov.in/judis
S.A.No.685 of 2022
For Appellant : Mr. G. Ethirajulu
For R1 to R6 : Mr. B. Sundarapandian
R7 : No appearance
JUDGMENT
The appellant is the first defendant in O.S. No.294/2012 on the file of the District Munsif Court, Panruti. The respondents 1 to 6/plaintiffs filed the said suit for declaration of their title to the suit property and for a consequential relief of permanent injunction restraining the defendants, (1) Murugan (appellant) and (2) Guna @ Gunasekaran from interfering with their peaceful possession and enjoyment of the suit property.
2. For the sake of convenience, the parties are referred to as per their rank in the trial court and at appropriate places, their rank in the present second appeal would also be indicated. Page 2 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022
3.The case of the plaintiffs in a nutshell is as follows :
The suit property originally belonged to the plaintiffs' father late Chinnarasu Gounder. Chinnarasu Gounder and his elder brother Veerappa Gounder purchased the suit property on 14.08.1943. Veerappa Gounder died as a bachelor during the year 1960. The total extent of the property purchased by the plaintiffs' father was 2 acres 70 cents in the suit survey number, out of which he sold one acre of land in favour of one Vijaya during the year 1995 and was in possession and enjoyment of the remaining extent of 1 acre 70 cents. After the death of Chinnarasu Gounder, the plaintiffs are in possession and enjoyment of the suit property by paying necessary tax to the Government. They also obtained patta for the suit property. However, the defendants are attempting to trespass into the suit property and also claiming right over the suit property. Hence the suit.
4. The second defendant remained absent before the trial court and was set ex parte. The suit was resisted by the first defendant on the Page 3 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 following grounds:
i. All the allegations contained in the plaint are false.
ii. The first defendant's father late Chinnathambi Gounder lent a sum of Rs.30,000/- to late Chinnarasu Gounder on 03.06.1999.
Chinnarasu Gounder executed a deed (Ex.B2) on the same day in favour of Chinnathambi Gounder. As per the said deed, the possession of the suit property was handed over to Chinnathambi Gounder in lieu of interest.
iii. Since Chinnarasu Gounder could not repay the sum of Rs.30,000/-
to Chinnathambi Gounder, he sold the suit property in favour of Chinnathambi Gounder orally after receiving a sum of Rs.1,00,000/- on 24.10.2004 in the presence of panchayatdhars.
Ever since the date of the said oral sale, the first defendant's father Chinnathambi Gounder was in possession and enjoyment of the suit property and after his death the first defendant is in possession. He has also prescribed title by way of adverse possession and prescription. Hence the suit filed by the plaintiffs is Page 4 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 not maintainable.
5. On the basis of the above pleadings, the trial Court framed the following issues :
"(i) Whether the sale deed dated 14.08.1943 is true and valid and accordingly the plaintiffs are entitled to the suit property?
(ii) Whether the first defendant is in possession of the suit property as alleged by him since 03.06.1999?
(iii) Whether the plaintiffs are entitled for a declaration and injunction as prayed for by them?
(iv) To what relief the plaintiffs are entitled?
6. In the trial Court, the plaintiffs 2 and 6 examined themselves and marked Ex.A1 to Ex.A17. The first defendant examined himself and three other witnesses and marked Ex.B1 to Ex.B4.
7. The learned trial court judge, on considering the evidence on record, decreed the suit in favour of the plaintiffs, vide his decree and Page 5 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 judgment dated 20.03.2019, on the following grounds:
i. The plaintiffs have proved that their father Chinnarasu Gounder purchased the suit property through a registered sale deed dated 14.08.1943 (Ex.A1) and that he has been in possession and enjoyment of the same as is evidenced by the revenue records Ex.A4 to Ex.A13.
ii. Though the first defendant contended that Chinnarasu Gounder borrowed a sum of Rs.30,000/- from his father late Chinnathambi Gounder and executed a deed (Ex.B2), he has not established the same by adducing acceptable evidence.
iii. In the written statement, the first defendant had stated that his father purchased the suit property orally after paying a sum of Rs.1,00,000/- to late Chinnarasu Gounder. However, in the proof affidavit, the first defendant had stated that his father purchased the suit property for Rs.6,00,000/-.
iv. The evidence of D.W.1 to D.W.4 are contradictory to each other and thus the deed (Ex.B2) is not proved.
Page 6 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 v. Merely because Chinnarasu Gounder had executed a Will dated 20.06.2005 (Ex.B1) in respect of his other properties except the suit property, it cannot be concluded that the suit property was orally purchased by late Chinnathambi Gounder.
8. Aggrieved over the decree and judgment passed by the trial court judge, the defendants filed an appeal in A.S. No.27 of 2019, before the Subordinate Court, Panruti. The learned Subordinate Judge, Panruti, after analysing the oral and documentary evidence on record, upheld the findings recorded by the trial court judge vide his decree and judgment dated 28.10.2021 as against which the present second appeal is filed.
9. At the time of admission the following substantial questions of law were framed by my learned predecessor.
"(1)Whether a suit for declaration of title and permanent injunction is maintainable by the plaintiffs/respondents 1 to 6 when the said property was mortgaged by their father to the father of the 1 st Page 7 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 defendant/appellant without taking any steps to redeem the suit property from the 1st defendant who is the legal heirs of mortgagor?
(2)Whether the Courts below being the Court of facts justified in not framing proper and necessary issues for determination of actual dispute between the parties as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, but repeated the pleading and grounds in a stereo type manner?
(3)Whether the Courts below justified in rejecting I.A.No.36 of 2021 filed under Order 41 Rule 27(b) and 28 of the Code of Civil Procedure for producing additional witnesses and grounds in the Appellate stage as if the said application was filed to fill up the lacunae and in the appellate stage without considering that the Lower Appellate Court is the last Court for appreciation of facts?
(4)Whether the findings rendered by the Courts below relating to execution of the Will dated 20.06.2005 marked as Ex.B.1 and the Varthamana Letter dated Page 8 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 03.06.1999 as Ex.B.2 are legally sustainable wherein the conjoint reading of both these documents prove the event of oral sale averred by the 1st defendant in absence of any documents to prove possession by the plaintiffs after the year 1999?”
10. Heard Mr. G. Ethirajulu, learned counsel for the appellant and Mr. B. Sundarapandian,learned counsel for the respondents 1 to 6.
11. It is an admitted fact that the suit property was owned by late Chinnarasu Gounder. According to the plaintiffs Chinnarasu Gounder purchased the suit property and other properties through a registered sale deed dated 14.08.1943 (Ex.A1) along with his brother Veerappa Gounder. It is also admitted that Veerappa Gounder died as a bachelor in the year 1960. Thereafter, Chinnarasu Gounder was in possession and enjoyment of the suit property and also obtained patta (Ex.A2). Chinnarasu Gounder died on 13.06.2017 as is evidenced by the death extract (Ex.A3). The revenue records (Ex.A4 to Ex.A13) show that Chinnarasu Gounder was in possession and enjoyment of the suit Page 9 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 property. The contention of the first defendant/appellant is that Chinnarasu Gounder during his life time borrowed a sum of Rs.30,000/- from his father Chinnathambi Gounder and executed a deed dated 03.06.1999 (Ex.B2) and handed over the possession of the suit property, in lieu of interest, to him. The abovesaid deed (Ex.B2) is extracted hereunder:
&gha; 30,000 f;F th;j;jkhd cld;gbf;if 1999 Mk; Mz;L [_d; jpq;fs; 3 %d;whk; ehs; gz;&l;b tl;lk; gz;luf;Nfhl;il kJ}uh mk;khg;Ngl;il fpuhkj;jpy;
trpf;Fk; n[k;Gypq;f gilahr;rp Fkhuh; gaph; J.rpd;djk;gp mth;fSf;F Nkw;gb tl;lk;, kzg;ghf;fk; kJ}uh fl;bahk;ghisak; fpuhkj;jpy; trpf;Fk; Nfrtf; fTz;lh; Fkhuh; gaph; rpd;duhR fTz;lh; Mfpa ehd; rk;kjpj;J vOjpf; nfhLj;j th;jj ; khd fpahuz;b cld;gbf;if gj;jpukhtJ vdf;F ghj;jpakhdJk; vd;Dila mDgtj;jpYk; RthjPdj;jpypUe;J tUfpwJkhd ,jdbapy; fz;l nrhj;ij ehsJ Njjpapy; jq;fs; trk; xg;Gf; nfhz;L vd;Dila FLk;g nryTf;Fk; gaph; nryTf;Fk; ehsJ Njjpapy; ehd; jq;fsplk; nuhf;fk; ngw;Wf; nfhz;l Page 10 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 &gha; 30,000.00 ,e;j &gha; Kg;gjhapuKk; ehd; ngw;W vd; igj;jhfp tpl;lgbahy; Nkw;gb njhifapd; tl;bf;F gjpyhf vdJ ghj;jpakhd ,jdbapy; fz;l nrhj;ij jhq;fNs gaph; rhFgb nra;J mDgtpj;Jf; nfhz;L tu Ntz;baJ. ,d;W Kjy; 3 %d;W tUl nfLtpw;F Nky; jhq;fs; Ntz;Lk; NghJ jq;fsplk; nuhf;fk; &gha;
30,000.00 Kg;gjhapuKk; nfhLj;J ,e;j th;j;jkhdj;ijg; igry; nra;J ngw;Wf; nfhs;tJld; nrhj;ijAk; ehd; jq;fsplkpUe;J xg;Gf; nfhs;fpNwd;. vd; epyj;ij jhq;fs; mDgtpg;gjhy; jq;fs; njhiff;F tl;b fpilahJ. ehd; jq;fsplk; njhif ngw;Wf; nfhz;Ls;sjhy; vd; epyj;Jf;F Fj;jif fpilahJ. ,jpy; fz;l epyj;Jf;Fhpa jPh;it tifawhf;fis ehNd nrYj;jpf; nfhz;L tUfpNwd;. ,e;jg;gb ehd; rk;kjpj;J vOjpf; nfhLj;j th;jj ; khd cld;gbf;ifg; gj;jpuk;.
nrhj;J tpguk;
flY}h; rg;b Ngl;il rg;b kzg;ghf;fk; fpuhkj;jpy; m.G.r. ne.304 Vf;fh; 1.66 nrz;l; epyj;Jf;F ge;jp mUzhryk; epyj;Jf;F (t) G+z;bahf fTz;lh; epyj;Jf;Fk; (fp) Nfhjz;lghzp fTz;lh; epyj;Jf;Fk; (Nk) ukzp epyj;Jf;F (nj) ,jpy; Nkw;gb Vf;fh; 1.66 nrz;l; epyKk;Page 11 of 16
https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 ,jw;Fz;lhd tha;f;fhy; top ghj;jpak; cs;gTld; Nrh;jJ ;
,jw;F fl;Lg;gl;lJ.
xg;gk;/- K.rpd;duhR rhl;rpfs;
xg;gk;/- V.jpy;yp Nfhtpe;jd;, j/ng. tbNty;; fTz;lh; xg;gk;/- M.fz;izad;, j/ng. KUNfr fTz;lh;
xg;gk;/- j/ng. uj;jpd Nty; fTz;lh; gz;luf;Nfhl;il The recitals of the above deed would go to show that Chinnarasu Gounder had created an usufructuary mortgage in favour of Chinnathambi Gounder. However, the document has not been registered. The first defendant, in order to prove the execution of the document (Ex.B2), had relied on the evidence of the attestors who were examined as D.W.2 to D.W.4. D.W.2 could not state as to who executed Ex.B2. He was not also aware of the contents thereon. D.W.3 in his evidence had stated that his signature was obtained when he came down to Pudupet and he does not know as to who borrowed money. D.W.4 also could not state as to when Ex.B2 was executed and who subscribed Page 12 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 signature on Ex.B2. Thus, the evidence of D.W.2 to D.W.4 is least useful to the case of the first defendant. Moreover, the first defendant/appellant in his written statement had averred that since Chinnarasu Gounder was not able to repay the loan amount of Rs.30,000/- he sold the suit property in favour of Chinnathambi Gounder orally on 24.10.2004 after paying a sum of Rs.1,00,000/- in the presence of panchayatdhars. None of the panchayatdhars were examined either in the trial court or in the first appellate court. Moreover, it is also pertinent to point out that the first defendant (D.W.1) had deposed that his father Chinnathambi Gounder purchased the suit property from Chinnarasu Gounder for a sum of Rs.6,00,000/-. Thus the first defendant had contradicted his own version in the written statement.
12. Mr.G. Ethirajulu, learned counsel for the appellant drew the attention of this Court to the Will dated 20.06.2005 (Ex.B1) and contended that Chinnarasu Gounder did not bequeath the suit property in favour of the beneficiaries as he knew that he had sold the suit property in favour of Chinnathambi Gounder. It is his further submission that Page 13 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 Chinnarasu Gounder had executed several Wills in favour of his sons and daughters and the present suit property was not the subject matter of any of the Wills. Therefore, it is contended that it can be easily inferred that the suit property was sold in favour of Chinnathambi Gounder, father of the first defendant, and that both the courts below had failed to appreciate this point.
13. As already observed, the first defendant/appellant had neither proved the execution of Ex.B2 deed by Chinnarasu Gounder nor his possession over the suit property by adducing acceptable evidence. On the other hand, the plaintiffs have filed sufficient documents to show that the suit property was in their continuous possession and enjoyment. Both the courts below had properly analysed the evidence on record and had come to a conclusion that the plaintiffs had proved their case. All the observations made by both the courts below are perfectly in order and I do not find any reason to interfere with the same. Accordingly, the substantial questions of law are answered against the appellant. Page 14 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022
14. In the result, i. the Second Appeal is dismissed. No costs. Consequently connected miscellaneous petition is closed. ii. The decree and judgment dated 28.10.2021 passed in A.S. No.27 of 2019, on the file of the Subordinate Court, Panruti, and the decree and judgment dated 20.03.2019 passed in O.S.No.294 of 2012, on the file of the District Munsif Court, Panruti, are upheld.
30.01.2025 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga To
1. The Subordinate Judge, Panruti.
2. The District Munsif Court, Panruti.
3. The Section Officer, VR Section, High Court, Madras. Page 15 of 16 https://www.mhc.tn.gov.in/judis S.A.No.685 of 2022 R. HEMALATHA, J.
bga Predelivery Judgment in S.A.No. 685 of 2022 30.01.2025 Page 16 of 16 https://www.mhc.tn.gov.in/judis